The Law for Family Matters

When lawyers speak about the law, they are really talking about two different things. The first kind of law is the laws made by the provincial and federal governments, called legislation. The other kind of law is the common law, rules and principles developed by the courts.

These pages provide an overview of legislation, the common law and the common law system of justice, and how to decide whether to begin a court proceeding under the Divorce Act or the Family Law Act, and whether to start that proceeding in the Provincial Court or in the Supreme Court.

Introduction

Under Canada's constitution, the federal and the provincial governments both have the power to make laws. Each level of government has its own particular area of jurisdiction, meaning that a subject that the federal government can pass laws on, the provincial governments generally can't, and vice versa. For example, the provinces have jurisdiction over property rights, so they can pass laws governing real estate, the sale of cars, the division of family property and so forth. The federal government doesn't have the ability to make laws about property rights, except in certain special circumstances. On the other hand, the federal government can pass laws dealing with the military, navigation and shipping, and divorce, things which are outside the jurisdiction of the provincial governments. This distinction is important in family actions because the laws of both the federal and provincial governments can relate to your problem, and you need to know which law governs what issue.

Legislated laws are only one source of law. Our constitution is another source of law, and another is the common law, also known as judge-made law. The fundamental principle of the common law is the idea that when a court has made a decision on a particular issue, another court facing a similar issue — with similar parties in similar circumstances — ought to make a similar decision. Courts are said to be "bound" by the decisions of earlier courts in previous cases. As no two cases are entirely alike, each court's decision is said to stand for a principle, a statement of what the law should be in the particular circumstances of that case. Often this principle is an elaboration or a clarification of the general common law rule on a particular subject; sometimes it is a statement about what the law ought to be.

Our constitution requires that the courts be independent from the government and vice versa. Despite this separation, the courts have a certain kind of authority over the government and the government has a certain kind of authority over the courts. For example, if the government passes a law that the court concludes is contrary to the constitution, the court can strike the legislation or require the government to change it. On the other hand, the government has the authority to pass laws that change the common law rules made by the courts, although it can't change the court's decision in a particular case.